Smith v. Williams-Ash

COOK, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GILMAN, J. (pp. 601-04), delivered a separate dissenting opinion.

OPINION

David and Melody Smith filed this 42 U.S.C. § 1983 action against Judy Williams-Ash — a social worker employed by the Hamilton County Department of Jobs and Family Services (“Children’s Services”) — claiming violation of their due process right to a hearing before the temporary removal of their children from their home. The district court granted summary judgment in favor of Williams-Ash, holding that the Smiths were not entitled to a hearing because they consented to the removal of their children pursuant to a *598voluntary “safety plan.” We agree and affirm.

I

David and Melody Smith are the parents of two minors and the legal custodians of another minor, Malake Dancer. The Smiths have custody of Malake — a nine-year-old who suffers from cerebral palsy and other disabilities — through a “kinship program” administered by Children’s Services. Pursuant to this program, Richard Montifore, a Children’s Services employee, inspected the Smith home in 2004. He found a home so “filthy” that he felt uncomfortable leaving Malake and the other children in the house. Lori Patton — another social worker — viewed the residence and also concluded that the children needed to leave. Patton found dog feces under one child’s bed and so much “clutter” in the house that, in her opinion, the children could not evacuate in the event of a fire.

These unsanitary and dangerous conditions spurred Montifore to call the police (the Smiths were later charged with and convicted of misdemeanor child endangerment). The next day, Children’s Services assigned Williams-Ash to the case. She persuaded the Smiths to consent to a safety plan that removed the children from the Smiths’ home and placed them with friends in the neighborhood. With the children in nearby homes, the Smiths maintained close contact — they visited, arranged outings, and drove the children to and from school.

The safety plan informed the Smiths, “[Y]our decision to sign this safety plan is voluntary,” and read:

1. This safety plan is a specific agreement to help ensure your child(ren)’s safety.

2. The custody of your child(ren) does not change under this safety plan.

3. Children’s Services is here to help you protect your child(ren) when you may not be able to do it on your own.

4. If you cannot or will not be able to continue following the plan, Children’s Services may have to take other action(s) to keep your child(ren) safe.

5. The safety plan will end when you are able to protect your child(ren) without help from Children’s Services.

6. This safety plan may be changed if new or different services are necessary.

7. You must contact your caseworker immediately if you decide that you cannot or will not be able to continue following the plan.

As a part of ensuring the children’s safety, the plan prohibited the Smiths from bringing the children to their home.

Once the parties agreed to the plan and placed the children in safe homes, Williams-Ash launched an investigation into the Smiths’ long-term ability to care for the minors. Over the next two weeks, Williams-Ash interviewed the Smiths, the children, the children’s doctors, the temporary caregivers, and the Smiths’ therapist. She also re-inspected the Smiths’ home.

The Smiths allege that during this time they cleaned their house and repeatedly asked Williams-Ash what else they needed to do to allow the children to return. They allege that Williams-Ash ignored their requests for information and threatened to permanently remove their children if they stopped cooperating. Though the record before the district court includes Williams-Ash’s response regarding additional requirements necessary to permit the children’s return, including doctors’ reports about the state of the children’s health, we take the Smiths’ allegations to *599be true for purposes of summary judgment.

After two weeks, the Smiths filed this action against Williams-Ash in her individual capacity for violating their substantive and procedural due process rights.1 Children’s Services terminated the safety plan two days later and returned the children— seventeen days after they were removed.

Williams-Ash moved the district court to dismiss, citing her right to qualified immunity. The denial of that motion precipitated the first appeal of this case. It resulted in a dismissal of the Smiths’ substantive due process claims, and an affir-mance of the denial of qualified immunity, because judging the Complaint only, it set up a violation of the Smiths’ clearly established right to procedural due process. Smith v. Williams-Ash, 173 Fed.Appx. 363, 366-67 (6th Cir.2005) (per curiam). Although Williams-Ash argued in her first appeal that the safety plan was voluntary, the panel assumed that Children’s Services acted without the Smiths’ consent because Williams-Ash failed to enter the plan into the record. Id. at 366. The court invited Williams-Ash to reassert her qualified immunity defense “based upon a more complete record.” Id. at 367 n. 1.

II

This court reviews the grant of a motion for summary judgement de novo, Westfield Ins. Co. v. Tech Dry Inc., 336 F.3d 503, 506 (6th Cir.2003), and will neither “make credibility determinations [nor] weigh the evidence,” Adams v. Metiva, 31 F.3d 375, 384 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Instead, we “view the evidence and draw all reasonable inferences therefrom in the light most favorable to the non-moving party.” Baker v. City of Hamilton, 471 F.3d 601, 603 (6th Cir.2006) (quoting Little v. BP Exploration & Oil Co., 265 F.3d 357, 361 (6th Cir.2001)).

Ill

To state a viable 42 U.S.C. § 1983 claim, the Smiths must demonstrate that (1) they were deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States and (2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). Here, no one disputes that Williams-Ash acted under the color of state law, only whether she deprived the Smiths of their right to procedural due process.

“[U]nder the [Fourteenth Amendment], the parent-child relation gives rise to a liberty interest that a parent may not be deprived of absent due process of law.” Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir.2006). “Notice and an opportunity to be heard are necessary before parental rights can be terminated.” Anh v. Levi, 586 F.2d 625, 632 (6th Cir.1978).

Williams-Ash acknowledges that Children’s Services removed the Smith children from their home without affording the Smiths a hearing. She insists, however, that she did not violate the Smiths’ due process rights because she removed the children with the Smiths’ consent.

We agree, adopting the reasoning set forth by Judge Posner in Dupuy v. Samuels, 465 F.3d 757 (7th Cir.2006). In Du-*600puy, an appeal challenging a preliminary injunction issued in a suit against Illinois’s child welfare agency, the Seventh Circuit reviewed the constitutionality of voluntary safety plans similar to the one at issue here. The court held that when a parent voluntarily consents to a safety plan, “no hearing of any kind is necessary; hearings are required for deprivations taken over objection, not for steps authorized by consent.” Id. at 761-62.

Although the parents in Dupuy argued that safety plans are inherently coercive when agencies force parents to sign the plan or face the threat of formal removal proceedings, the court found no fault in this strategy. “It is not a forbidden means of ‘coercing’ a settlement,” Judge Posner stated, “to threaten merely to enforce one’s legal rights.” Id. at 762. He analogized the agency’s threat to a plaintiffs legitimate threat to press a case to trial in order to induce a defendant to settle. Id. The defendant’s choice between accepting a settlement or risking a harsher outcome at trial “is a dilemma implicit in any settlement process. If there weren’t a downside to refusing to settle, there would be no settlements.” Id. at 761.

In this case, the Smiths remained in the safety plan voluntarily at all times. Although our dissenting colleague questions whether the Smiths were coerced into the plan, not even the Smiths argue that they involuntarily consented to enter into the plan. Rather, they only argue that they “were not allowed to recover their children after the Safety Plan had been initiated despite their best efforts,” Appellants’ Br. at 17 (emphasis in original), invoking the principle announced in Farley v. Farley that the consent given as part of a voluntary safety plan may become involuntary during the course of the plan. 225 F.3d 658, 2000 U.S.App. LEXIS 17580, at *5 (6th Cir. July 19, 2000) (unpublished). But here, in light of the Smiths’ admitted failure to utilize the safety plan’s clear, simple mechanism for rescinding the plan, they fail to raise a genuine issue of material fact with respect to their continuing consent to the plan.

In addition to informing the Smiths that their agreement with Children’s Services relied on their voluntary participation (“[Y]our decision to sign this safety plan is voluntary”), the safety plan instructed the Smiths to inform Williams-Ash if they no longer wanted to participate (“You must contact your caseworker immediately if you decide that you cannot or will not be able to continue following the plan.”). As the district court correctly concluded, the Smiths never alleged that they attempted to contact Williams-Ash — or anyone else at Children’s Services — to revoke their consent. Rather than take this intuitive step, the Smiths retained counsel and sued for damages. Unsurprisingly, after Children’s Services first received notice (through the lawsuit) that the Smiths renounced the safety plan, it promptly terminated the plan and returned the children to the Smiths’ home.

The Smiths concede their failure to revoke pursuant to the plan’s instruction to alert Williams-Ash. As they see it though, their repeated inquiries to Williams-Ash about both her investigation’s length and what they needed to do to speed the children’s return “amounted to the same thing” as an explicit demand to terminate the safety plan. Appellants’ Br. at 15.

The plain-language form provided to the Smiths undercuts their argument. It told them to revoke their consent by advising their caseworker. To have opted out of the plan would have triggered consequences: Children’s Services would either return the Smiths’ children or seek to keep the children with their temporary caregiv*601ers by filing a civil complaint against the Smiths. See Ohio Rev.Code § 2151.353(A)(2) (authorizing Ohio’s juvenile courts to award temporary custody of neglected children to a public services agency). Questioning about the timing of a procedure opted for to avoid the potential of a more onerous one — a formal custody proceeding — cannot tenably be viewed as equivalent to opting out. We do not doubt that the Smiths, as any parents likely would, resented the safety plan from the beginning. But mere displeasure and frustration fails to negate their consent. Rather than remind Williams-Ash of what she already knew — that they disliked the plan — the Smiths needed to explicitly withdraw the consent they explicitly gave, thus requiring Children’s Services to either return the children or file a formal complaint against them. In light of their admitted failure to do so, the Smiths were not entitled to a hearing.2

IV

For these reasons, we affirm.